COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
| TERRY R. WOODLEY,
Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-00-00470-CR Appeal from the 243rd District Court of El Paso County, Texas (TC# 990D05547) |
M E M O R A N D U M O P I N I O N
This is an appeal from a jury conviction for the offense of securing the execution of a document with the value of the pecuniary interest affected being more than $20,000 but less than $100,000. The jury assessed punishment at two (2) years' community supervision. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
During the presentation of the State's evidence, Maria Theresa C. Rivera testified that she was the Civil Supervisor for the El Paso County District Clerk's Office. Prior to testifying, she had reviewed the clerk's file in a case styled Terry R. Woodley v. David W. Lewis Construction, Inc. She related that Appellant had filed the original petition in the case on February 3, 1995. He was represented by an attorney named Marcus C. Marsden. The defendant, David W. Lewis Construction, Inc., was represented by attorney John W. Welsh, Jr. Rivera stated that a judgment in that cause was filed on August 5, 1996. The judgment had been signed on the same day by Judge Peter Peca. It was an agreed judgment which indicated that Appellant was to recover $65,000 from "DEFENDANT DAVID W. LEWIS CONSTRUCTION, INC. or SIWEL IND."
Rivera testified that on August 13, 1996, Appellant filed a request for a writ of execution. Both David W. Lewis and Siwel Industries were listed as defendants on the request. A writ of execution issued on August 20, 1996 directing the Sheriff to seize property from "DAVID W. LEWIS AND/OR SIWEL INDUSTRIES" in the amount of $65,000. The witness related that the writ was returned unexecuted on October 7, 1996, because the attorney, John W. Welsh, Jr., had obtained a temporary restraining order which prevented the Sheriff from seizing the assets of Siwel Industries.
John W. Welsh, Jr. testified that he had represented the defendant, David W. Lewis Construction, Inc., in the civil suit. Welsh testified that the parties came to an agreement whereby Appellant would receive $35,000 from David W. Lewis Construction, Inc. The agreed judgment was signed by Welch and David Lewis who signed as a representative of David W. Lewis Construction, Inc. Lewis was the sole shareholder of that corporation. The
judgment was delivered to Appellant's attorney, Marcus C. Marsden, to be signed and then presented to the judge for his signature.
Welsh testified that after he sent the judgment to Marsden, Hardy Lewis, David Lewis's father and the owner of Siwel Industries, called Welsh and told him that a Sheriff's officer was attempting to serve a writ of execution upon Siwel Industries. The Sheriff's department intended to seize Hardy Lewis's assets to satisfy a judgment for $65,000 against Siwel Industries. Welsh related that Siwel Industries is a sole-proprietorship owned by Hardy Lewis, and that Hardy Lewis had never been a party to Appellant's suit against David W. Lewis Construction, Inc. Accordingly, Hardy Lewis had no liability with regard to that suit.
Welsh stated that the judgment had been altered by adding Siwel Industries as an additional defendant. Also, the monetary award had been changed from $35,000 to $65,000. Welsh obtained a temporary restraining order from Judge Peca in order to halt the execution of the writ. He testified that at the hearing on the temporary restraining order, Appellant admitted that he had altered the judgment by adding Siwel Industries as a new party and by changing the monetary award to $65,000.
Welsh related that Appellant contacted him by telephone prior to the issuance of the writ of execution. In response to Appellant's inquiry as to when he would receive the money awarded in the agreed judgment, Welsh stated that Appellant was bothering him and wasting
his time. Welsh declined to discuss the case with Appellant, although he did state that he had advised David Lewis to seek the services of a bankruptcy attorney.
Marcus C. Marsden Jr. testified that he represented Appellant in his lawsuit against David W. Lewis Construction, Inc. and he negotiated the agreed settlement awarding Appellant $35,000. He stated that Welsh and Lewis signed the agreed judgment and returned it to Marsden. In preparation for his relocation to Fort Worth, Texas, Marsden delivered the case file to Appellant. This file contained the signed judgment which had not been presented to Judge Peca for his approval and signature.
Marsden stated that Welsh told him that someone had changed the judgment to read that the award was $65,000 and Siwel Industries had been added as a new party. Marsden notified Judge Peca by letter that the judgment had been altered. He informed Judge Peca that a different font had been used on the altered first page of the judgment.
Hardy Wilson Lewis testified that he owned a construction business known as Siwel Industries. He stated that the business is a sole proprietorship, and he would be personally responsible for any judgment taken against the company. When the Sheriff's department tried to serve the writ of execution, Lewis became aware that Siwel Industries had been added to the agreed judgment. The witness stated that his company was not properly added to the judgment and that he had done nothing to give Appellant the impression that he was involved in the business affairs of his son's company, David W. Lewis Construction, Inc.
Lewis stated that he incurred expenditures of between $7,000 and $7,500 in defending against Appellant's act of adding Siwel Industries to the judgment and the writ of execution. He testified that he would have suffered more than $65,000 in damages if the altered judgment had been executed against Siwel Industries. Lewis filed a counter claim against Appellant and was awarded the sum of two cents by Judge Peca.
Appellant testified on his own behalf. He stated that he did change the amount on the judgment from $35,000 to $65,000. He made this change as a result of two telephone conversations he had with John Welsh in 1996. He called Welsh to find out when he would receive the $35,000. Appellant related that Welsh told him that he would not ever see the money. Appellant told Welsh that the negotiated settlement was off and that he was going to reinstate the original request for $70,000. Welsh replied that it made no difference to him and Appellant could request any amount he wanted. In response to Appellant's statement that "I assume you'll agree with this.", Welsh purportedly answered, "Do what you like."
Appellant testified that he altered the monetary award to $65,000 instead of $70,000 because he thought Welsh would be more appreciative. He admitted adding Siwel Industries as a new defendant because he no longer wished to deal with David Lewis and Appellant thought Hardy Lewis should be responsible for his son's debts as he was his son's mentor in the construction business. Further, he considered that both Hardy Lewis and his son ran Siwel Industries. Appellant stated that he did not intend to defraud anyone when he altered the judgment and gave it to Judge Peca for signing.
During cross-examination, Appellant admitted that he altered the judgment by having a friend type a new front page. He then attached the new front page to the back page that had already been signed by both attorneys and David Lewis. When he took the altered page to Judge Peca for signing, he did not tell him that the front page was altered; rather, he stated to Peca that he was following Welsh's instructions. Judge Peca signed the altered agreed judgment and Appellant filed it with the district clerk. Appellant testified that it was his intent to obtain the full amount of the judgment from either David Lewis or Hardy Lewis or in fractional amounts from both.
The sum of Appellant's testimony was that he had Welsh's permission to change the judgment and that he did not understand the ramifications of requesting a writ of execution; although, he did state that he was trying to collect the money from both David and Hardy Lewis.
II. DISCUSSION
In Appellant's sole issue on appeal, he asserts that the evidence is legally insufficient to support the conviction. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).
Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State ,901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843, (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness's testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.--El Paso 1995, pet. ref'd).
The application paragraph in the court's charge to the jury read:
Now if you find from the evidence beyond a reasonable doubt that on or about August 5, 1996, in El Paso County, Texas, the defendant, TERRY WOODLEY, did then and there, with intent to harm and defraud Hardy Lewis, by deception, intentionally or knowingly cause Judge Peter Peca to sign and execute a document affecting the pecuniary interest of Hardy Lewis, to wit: a civil judgment, the value of said pecuniary interest being $20,000 or more but less than $100,000, then you will find the defendant guilty.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.
Appellant's specific complaints regarding the legal sufficiency of the evidence are that the State did not prove that Appellant acted with intent to harm or defraud the complainant; the State failed to prove that Appellant utilized deception in causing Judge Peca to sign the altered judgment, and the State failed to demonstrate that the amount of the pecuniary interest involved was at least $20,000.
With regard to the first contention, Appellant asserts that the evidence showed that Appellant believed he had permission to change the judgment due to attorney Welsh's statements during the telephone calls as well as the fact that the civil defendant had not complied with the earlier agreed judgment.
The intent to harm or defraud another can be inferred from the acts, words, and the conduct of the accused. Goldstein v. State, 803 S.W.2d 777, 791 (Tex. App.--Dallas 1991, pet. ref'd). Specifically, with regard to the offense of securing execution of a document by deception (1), the proof of "intent to defraud and harm" is a question of fact to be determined from all the facts and circumstances. Id.
The evidence regarding the conversations between Appellant and Welsh was conflicting. While Welsh stated that he had a telephone conversation with Appellant, his testimony indicated that he had refused to discuss the case with Appellant. Appellant, on the other hand, related a version of the telephone conversation wherein Welsh gave Appellant the impression that he could change the judgment. However, in viewing the evidence in a light most favorable to the judgment, and taking into account that the jury is free to accept or reject all or any portion of any witness's testimony, we find that the jury could rationally conclude that Welsh did not give such an impression. Appellant altered the judgment so that it reflected a monetary reward of $65,000 and he added Siwel Industries as a defendant. However, if the jury chose to believe Welsh's version of events, then Appellant could not have perceived such an agreement.
Next, Appellant asserts that the State failed to adequately demonstrate that Appellant utilized deception in order to get Judge Peca to sign the altered judgment. Again, Appellant asserts that his understanding of the conversation with Welsh negated any aspect of deceptive conduct. While Section 32.46 of the penal code fails to define "deception", we may look to other sections of the penal code for guidance. Goldstein, 803 S.W.2d at 790. "Deception," as defined in Chapter 31 of the penal code means creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true. Tex. Pen. Code Ann. § 31.01 (1)(A) (Vernon Supp. 2003).
As stated, there was contradictory evidence before the jury regarding the phone conversations between Welsh and Appellant. However, the mere existence of contradictory evidence does not destroy the sufficiency of the evidence. Goldstein, 803 S.W.2d at 790. Again, the trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Id. at 790-91.
In the instant case, Appellant testified that he presented the altered judgment to Judge Peca and stated that he ". . . had talked to Mr. Welsh and this is what he instructed me to do . . . . " Appellant did not tell the judge that he had altered the judgment. Even if the jury believed that Appellant had the impression he could alter the judgment, the fact that he failed to state to the judge could be viewed as disingenuous and deceptive. Further, there is no evidence that Welsh or Hardy Lewis agreed to have Siwel Industries added as an additional defendant. Viewing the cumulative force of all the incriminating circumstances we find that there was legally sufficient evidence to demonstrate that Appellant acted with deception.
Lastly, Appellant contends that the State failed to sufficiently establish a pecuniary loss greater than $20,000 as required in the court's charge to the jury. Appellant predicates this contention on the testimony of Hardy Lewis that he spent between $7,000 and $7,500 to defend himself against the altered judgment which had added Hardy's company to the lawsuit. Appellant also points to the fact that Judge Peca awarded only two cents in Hardy's counterclaim against Appellant in support of his contention that the State did not establish the requisite pecuniary loss.
As the term "pecuniary interest" is not defined under Section 32.46, it is to be given its plain and ordinary meaning. Briones v. State, 76 S.W.3d 591, 595 (Tex. App.--Corpus Christi 2002, no pet.); Goldstein, 803 S.W.2d at 791. Using the dictionary and thesaurus for assistance, the Goldstein Court held that the pecuniary interest requirement under Section 32.46 was met if the complainant had a "financial stake" in the matter. Goldstein, 803 S.W.2d at 791. This comports with the legal definition of pecuniary interest which defines "pecuniary" as something relating to money or financial matters and defines "pecuniary interest" as a direct interest related to money in an action or case. Black's Law Dictionary 1095 (5th Ed. 1979).
The State maintains that Appellant has equated "pecuniary interest" with "pecuniary loss." We agree. By the terms of the statute, the offense is completed when a person causes another to execute a document "with the intent to defraud or harm . . . ." There is no requirement that the state prove the resulting harm. Smith v. State, 681 S.W.2d 71, 75-6 (Tex. App.--Houston [14th Dist.] 1983), affirmed, 722 S.W.2d 408 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 933, 107 S. Ct. 1573, 94 L. Ed. 2d 765 (1987).
In Fisher v. State, 803 S.W.2d 828 (Tex. App.--Dallas 1991, pet. ref'd), the defendant was an out-of-state attorney, not licensed to practice in Texas. Id. at 829. The attorney filed a lawsuit by signing the name of a co-worker who was licensed to practice in Texas, used her bar number, and requested the issuance of citation upon the complainant, the civil defendant. Id. at 829-30. The issue was whether the execution of the citation by the clerk which made the complainant, as the defendant in the lawsuit, potentially liable for monetary damages affected the pecuniary interest of the complainant. The court held the evidence was sufficient because were it not for the execution of the citation, the complainant's affirmative limitations defense would have acted as a complete bar to liability. Id. at 830. Denying the complainant that defense would affect her pecuniary interest by subjecting her to potential liability. Id.
In the present case, it is clear that Appellant was prepared to collect the full monetary amount of the altered judgment either Hardy Lewis or David Lewis. Appellant's actions made Hardy Lewis potentially liable for the whole $65,000 amount in the judgment. Accordingly, the State proved that the pecuniary interest involved was more than $20,000 but less than $100,000. Appellant's issue on appeal is overruled.
Having overruled Appellant's sole issue on review, we affirm the judgment of the trial court.
February 27, 2003
RICHARD BARAJAS, Chief Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
1. Tex. Pen. Code Ann. § 32.46(a)(1) (Vernon Supp. 2003), Securing Execution of Document by Deception, provides:
(a) A person commits an offense if, with intent to defraud or harm any person, he, by deception:
(1) causes another to sign or execute any document affecting property or service or the pecuniary interest of any person.